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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 8/12/20 Nikola Corp. S-8 8/12/20 4:71K Toppan Merrill/FA |
Document/Exhibit Description Pages Size
1: S-8 Registration Statement - Securities for an HTML 46K
Employee Benefit Plan
2: EX-5.1 Opinion of Counsel re: Legality HTML 6K
3: EX-23.1 Consent of Expert or Counsel HTML 5K
4: EX-23.2 Consent of Expert or Counsel HTML 5K
| Page | (sequential) | (alphabetic) | ↑Top | ||
|---|---|---|---|---|---|
| 1 | 1st Page – Filing Submission | ||||
| " | 24.1 | ||||
| " | Power of Attorney (contained on the signature page hereto) | ||||
As filed with the Securities and Exchange Commission on August 12, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NIKOLA CORPORATION
(Exact name of Registrant as specified in its charter)
| Delaware |
4141 E Broadway Road
|
82-4151153 |
|
(State or other jurisdiction of incorporation or organization) |
(Address, including zip code, of Registrant’s principal executive offices) |
(IRS Employer Identification No.) |
2020 Stock Incentive Plan
2020 Employee Stock Purchase Plan
Nikola Corporation 2017 Stock Option Plan
(Full title of the plan)
Britton M. Worthen, Esq.
Chief Legal Officer
Nikola Corporation
4141 E Broadway Road
(Name and address of agent for service)
(480) 666-1038
(Registrant’s telephone number, including area code)
Copies to:
Stanley F. Pierson, Esq.
Gabriella A. Lombardi, Esq.
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Tel: (650) 233-4500
Fax: (650) 233-4545
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer | ¨ | Accelerated filer | x |
| Non-accelerated filer | ¨ | Smaller reporting company | ¨ |
| Emerging growth company | x |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) or the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
| Title of Securities To Be Registered |
Amount To Be Registered(1) |
Proposed Maximum Offering Price Per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
| Common Stock, par value $0.0001 per share | 42,802,865(3) | $34.20(2) | $1,463,857,983(2) | $190,008.77(2) |
| Common Stock, par value $0.0001 per share | 4,000,000(4) | $29.07(5) | $116,280,000(5) | $15,093.15(5) |
| Common Stock, par value $0.0001 per share | 39,718,344(6) | $1.25(7) | $49,647,930(7) | $6,444.30(7) |
| Total | 86,521,209 | $1,629,785,913 | $211,546.22 |
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933 (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to the plans described herein in the event of a stock dividend, stock split, reverse stock split, extraordinary dividend, extraordinary distribution, recapitalization, reorganization, merger, combination, consolidation, split-up, spin-off, combination, exchange of shares, rights offering, separation, reorganization, liquidation or similar event. |
| (2) | Computed in accordance with Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee, based on the average of the high and low prices of Nikola Corporation’s (the “Registrant”) Common Stock as reported on The Nasdaq Global Select Market on August 5, 2020. |
| (3) | Represents shares of Common Stock authorized for issuance as awards under the Nikola Corporation 2020 Stock Incentive Plan (the “2020 Incentive Plan”), which number includes 22,802,865 reserved shares of Common Stock not issued or subject to outstanding grants under the 2017 Plan (as defined below) as of June 3, 2020. To the extent that awards outstanding under the Nikola Corporation 2017 Stock Option Plan (the “2017 Plan”) as of June 3, 2020 are forfeited, cancelled, surrendered or terminated without issuance of shares, the shares of Common Stock subject to such awards will be available for future issuance under the 2020 Incentive Plan. See footnote 6 below. |
| (4) | Represents shares issuable pursuant to the 2020 Employee Stock Purchase Plan (the “ESPP”). |
| (5) | Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of the average of the high and low prices of the Registrant’s Common Stock as reported on The Nasdaq Global Select Market on August 5, 2020. Pursuant to the ESPP, the purchase price of Common Stock will be at least 85% of the lower of the fair market value of the Common Stock on the first trading day of the offering period or on the purchase date. |
| (6) | Represents shares of Common Stock underlying awards previously granted under the 2017 Plan, as assumed by the Registrant on June 3, 2020 pursuant to the Business Combination Agreement, dated as of March 2, 2020, by and among VectoIQ Acquisition Corp. (“VectoIQ”), our predecessor company, VCTIQ Merger Sub Corp., a wholly owned subsidiary of VectoIQ incorporated in the state of Delaware, and Nikola Corporation. Any shares of Common Stock that are subject to outstanding awards under the 2017 Plan that expire, are forfeited or lapse unexercised and would otherwise have been returned to the share reserve under the 2017 Plan will be available for issuance under the 2020 Incentive Plan. See footnote 3 above. |
| (7) | Computed in accordance with Rule 457(h) of the Securities Act solely for purposes of calculating the registration fee. The average weighted exercise price at which the options may be exercised for the shares of Common Stock described above in Footnote 6 is $1.25 per share. |
The Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act.
C:
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act.
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to be, and are not, filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference in this Registration Statement:
(a) Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed with the Commission on March 6, 2020 and amended on Form 10-K/A filed with the Commission on April 15, 2020.
(b) Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, filed with the Commission on May 11, 2020, and June 30, 2020, filed with the Commission on August 4, 2020.
(c) Registrant’s Current Reports on Form 8-K filed with the Commission on January 8, 2020, March 3, 2020 (with respect to Items 1.01 and 3.02), May 12, 2020, May 26, 2020, June 2, 2020, June 8, 2020 (as amended on June 9, 2020), July 23, 2020 (filed at 6:04 a.m. EDT), July 23, 2020 (filed at 6:16 a.m. EDT), and August 11, 2020.
(d) The description of the Registrant’s common stock contained in the registration statement on Form 8-A filed on May 15, 2018 and any amendment or report filed with the Commission for the purpose of updating the description.
In addition, all documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, (excluding any portions thereof furnished by the Registrant, including but not limited to information furnished under Item 2.02 and Item 7.01 and any exhibits relating to Item 2.02 or Item 7.01 furnished under Item 9.01 of Form 8-K and any certification required by 18 U.S.C. § 1350), on or after the date of this Registration Statement, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement.
| Item 4. | Description of Securities |
Not applicable.
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| Item 5. | Interests of Named Experts and Counsel |
Not applicable.
| Item 6. | Indemnification of Directors and Officers |
Section 145(a) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145 of the DGCL.
The Registrant has entered into indemnification agreements with each of its directors and executive officers. These agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and its charter and its bylaws.
The Registrant also maintains a general liability insurance policy, which will cover certain liabilities of directors and officers of the Registrant arising out of claims based on acts or omissions in their capacities as directors or officers.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
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| Item 8. | Exhibits. |
| Item 9. | Undertakings. |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Phoenix, Arizona, on the 12th day of August, 2020.
| NIKOLA CORPORATION | ||
| By: | /s/ Mark. A. Russell | |
| Mark A. Russell | ||
| President and Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark A. Russell and Kim J. Brady, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign any and all amendments (including post-effective amendments) to this registration statement on Form S-8 and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each of said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-facts and agents, or his or her substitute or substitutes, or any of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
| Signature | Title | Date | ||
|
/s/ Mark A. Russell |
President, Chief Executive Officer and Director (Principal Executive Officer) | August 12, 2020 | ||
|
/s/ Kim J. Brady |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | August 12, 2020 | ||
|
/s/ Trevor R. Milton |
Executive Chairman | August 12, 2020 | ||
| Director | August 12, 2020 | |||
| Director | August 12, 2020 | |||
| Director | August 12, 2020 | |||
|
/s/ Gerrit A. Marx |
Director | August 12, 2020 | ||
| Director | August 12, 2020 | |||
| Director | August 12, 2020 | |||
|
/s/ Jeffrey W. Ubben |
Director | August 12, 2020 |
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| This ‘S-8’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on / Effective on: | 8/12/20 | |||
| 8/5/20 | SC 13D | |||
| 6/30/20 | 10-Q, UPLOAD | |||
| 6/3/20 | 25-NSE, 3, 4, 4/A, 8-K, 8-K/A | |||
| 3/31/20 | 10-Q | |||
| 3/2/20 | 8-K | |||
| 12/31/19 | 10-K, 10-K/A | |||
| List all Filings | ||||